Dansie v Commissioner of Police for the Metropolis EAT/0234/09

sex discrimination | dress codes | long hair

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision to dismiss a sex discrimination claim by a male trainee police officer who was required to get his hair cut.

Prior to commencing training as a police constable, Mr Dansie enquired whether or not his hair length would be acceptable to the police force. He was told that it would comply with the dress code policy, which required the standard of dress to be smart, fit for the purpose and to portray a favourable impression on the service. Management guidance specified that hair should be neat, not cover the ears and should be worn above the collar. Long hair was required to be neatly and securely fastened and worn close to the head. Mr Dansie reported for training with his hair slicked back and in a bun on the back of his head. He was told to have his hair cut or face disciplinary action. Therefore he complied. A female recruit in similar circumstances would not have been required to have her hair cut. Mr Dansie claimed unlawful sex discrimination and harassment. The employment tribunal dismissed his claim and he appealed.

Referring to Smith v Safeway plc [1996] IRLR 456 CA and Department for Work and Pensions v Thompson [2004] IRLR 348 EAT, in which the EAT also considered Smith, the EAT said that a difference in treatment between the sexes on a particular aspect of the dress code is not necessarily more favourable treatment of one sex over the other. To establish whether or not there was unfavourable treatment it was necessary to look at the dress code as a whole. Requiring a conventional standard of appearance was not, of itself, discriminatory, but neither sex must be treated less favourably as a result of the code being enforced.

The EAT held that, having followed an acceptable legal principle, the tribunal had found that the dress code policy was gender neutral. It had considered that a policy can be looked at as a whole and be gender specific as well as gender neutral, provided that it is fair between the sexes and it satisfies society’s conventions and the requirements of the relevant profession. The tribunal had also held that the force would have treated a woman in the same way in comparable circumstances. Ordering Mr Dansie to have his hair cut or face disciplinary action was not less favourable treatment, or treatment on the grounds of his sex. Therefore his claim of harassment had also failed.

The EAT disagreed with Mr Dansie’s argument that Smith and Thompson require that where a restriction is applied to only one sex, it must be necessary to satisfy the overall aims of the policy. The EAT held that the tribunal had applied the correct test and had been right to find that the management guidance on applying the policy was equally balanced between the sexes. The tribunal had also been entitled to conclude that a female comparator who did not comply with a gender neutral policy would have been treated in the same way. Having found that the policy was equally balanced between the sexes the tribunal was entitled to reject the argument of less favourable treatment. The EAT also upheld the tribunal finding that the conduct complained of did not amount to harassment. The appeal was dismissed.

Case transcript of Dansie v Commissioner of Police for the Metropolis (Microsoft Word format, 49.5K) (on the EAT website)

Go to XpertHR case law stop press.